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Contesting A Will In California

The contestants of a will have the burden of providing evidence and persuasion to establish lack of testamentary intent or capacity, fraud, duress, undue influence, mistake or revocation. Latent or patent ambiguities are errors the court may remedy, if applicable. A patent ambiguity is when a word is vague on the surface, and a latent ambiguity is when a word can have more than one meaning. A California estate planning attorney assists clients by drafting a will in a manner designed to avoid ambiguities.

Arguing ambiguities

Under Cal. Prob. Code §21120, the words of an instrument are to be interpreted in a manner that offers a mechanism that yields an effect, as opposed to an interpretation, which renders the expression inoperative. The court prefers to interpret the instrument in a manner designed to prevent intestacy or failure of a transfer. In Estate of Russell, 69 Cal. 2d 200, 206-213 (1968), the California Supreme Court established that extrinsic evidence could be used to resolve a patent ambiguity, and identify a latent ambiguity. Therefore, California adheres to the modern trend, which allows a court to admit extrinsic evidence that shows consistency with any reasonable construction of the words used. If there is no ambiguous term, the courts follow the traditional view and will not evaluate extrinsic evidence to define the term. Instead, pursuant to the strong presumption that the testator knew and approved the content of a will, a court will construe the will as written.

Technical words are deemed to be used in their technical sense unless:

  • The context clearly indicates a differing intention, or
  • It satisfactorily appears the instrument was drawn exclusively by the transferor, and
  • The transferor was unacquainted with the technical sense

The attorneys at a San Jose estate planning law firm evaluate your estate to determine the best strategy for fulfilling your objectives.

Retain highly skilled California estate planning lawyers

Lawyers at Temmerman, Cilley, Kohlmann & Norcia, LLP. offer clients efficient and effective representation. Our office represents clients in Santa Clara County, Santa Cruz County and the surrounding areas.

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